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Supreme Court 23 November 2022

R v Valencia (No 1)

[2022] NSWSC 1602

Homicide
CRIM INAL LAW ACCUSED CHARGED WITH MURDER JUDGE ALONE TRIAL APPLICATION TO VACATE GRANTED

Citation: R v Valencia (No 1) [2022] NSWSC 1602
Court: Supreme Court of New South Wales
Date: 23 November 2022
Judge: Yehia J

Background

The accused was charged with the murder of the deceased, alleged to have occurred between 7 and 14 November 2020. The accused had elected to be tried by judge alone, and the Crown had consented to that election. The trial was listed to commence on 21 November 2022, and at two earlier direction hearings both parties had confirmed they were ready to proceed. The identified issue for trial was excessive self-defence.

Five days before the trial was due to start, the Court was notified by email that the accused had withdrawn his instructions from both his solicitor and senior counsel. New solicitors were retained, but they were unable to secure replacement counsel despite contacting 19 sets of chambers and the Public Defenders' Chambers. The new solicitor also received the 4,795-page brief of evidence only days before the listed trial date.

A further complication arose when the defence identified a potential causation issue. Medical records within the brief suggested the deceased had a pre-existing cardiac condition, including atrial fibrillation diagnosed at least as far back as October 2019. The defence sought to engage a forensic pathologist to report on whether that condition was relevant to the cause of death.

  • Whether the trial date should be vacated given the accused's inability to secure replacement counsel in time for the listed commencement date.
  • Whether proceeding with an unrepresented accused in a judge alone murder trial would compromise the fairness of the trial.
  • Whether the defence should be afforded an opportunity to obtain forensic pathology evidence on the causation issue.

Decision

Yehia J acknowledged significant countervailing considerations against granting the adjournment. The accused had been in custody since February 2020. The deceased's family and the broader community had a legitimate interest in finality. There is also a strong public interest in trials proceeding once fixed, and a last-minute vacation risked adversely affecting witnesses.

Despite those concerns, the Court concluded that the trial should be vacated. Central to that conclusion was the right of an accused to a fair trial, as affirmed by the Court of Criminal Appeal in MS v R [2017] NSWCCA 252. That decision drew on the High Court's reasoning in Dietrich v The Queen and MacPherson v The Queen, which identified the significant disadvantages facing an unrepresented accused and confirmed a trial judge's duty to ensure the accused has a fair trial.

Yehia J noted that the difficulty of proceeding without representation was compounded by the judge alone format. In a judge alone trial, the tribunal of fact and the judge are the same person. That made it particularly difficult, and in her Honour's view inappropriate, for the judge to advise the accused about procedural matters or issues in the trial, especially where complex expert evidence on causation was likely to arise.

The Crown neither opposed nor consented to the application, and itself sought additional time to obtain a further forensic pathology report, given that causation had not previously been a live issue and the pathologist who conducted the autopsy had done so under supervision.

Orders Made

  • The application to vacate the trial date was granted.
  • The trial was relisted to commence on 6 February 2023.

Key Takeaways

  • The Supreme Court confirmed that the fundamental right to a fair trial can outweigh the public interest in a criminal trial proceeding on its listed date, even where both parties had previously indicated readiness.
  • Proceeding with an unrepresented accused in a judge alone trial raises particular difficulties, since the tribunal of fact cannot appropriately assume an advisory role in relation to procedural rights or issues during the hearing.
  • A late-breaking causation issue, supported by material in the brief pointing to a pre-existing cardiac condition in the deceased, provided an additional basis for the adjournment, with both the defence and the Crown requiring time to obtain forensic pathology evidence.
  • The decision in MS v R [2017] NSWCCA 252 was applied, reinforcing that a conviction following a trial in which an accused was denied a fair opportunity to be represented may constitute a substantial miscarriage of justice.
  • Granting the adjournment was described by Yehia J as a matter of reluctance, reflecting the genuine tension between the interests of the accused, the interests of the deceased's family, and the public interest in the timely resolution of serious criminal proceedings.

Legislation and Cases Referenced

Cases:
- MS v R [2017] NSWCCA 252
- Dietrich v The Queen (1992) 177 CLR 292
- MacPherson v The Queen (1981) 147 CLR 512
- Filippou v The Queen (2015) 256 CLR 47

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 36 and 37